CoCo

Constitutional Code in the Realm of Culture

Friday, December 31, 2004

German PC Levy

Germany will be the first (European) country where a copyright levy is imposed on PCs. The District Court of Munich has decided that Germany's largest computer maker Fujitsu Siemens has to pay a levy of 12 euro to rights society VG Wort for any of their computers sold in the country. Other manufacturers will also be copytaxed for their computers. VG Wort plans to enforce this landmark decision countrywide.

Levies have been used on a large scale in Europe and seek to compensate for lost revenues from private copying, not for copyright infringement, through p2p networks, for example. The system has its roots in Germany, notably in the landmark Personalausweise case (Bundesgerichtshof, May 1964). Now the country expands its heritage to the general purpose PC. The current concern is that consumers will have to pay a levy, while not being able to make a private copy due to DRMs. A consumer who wants to rip a bought CD to the hard disk of his taxed computer may be prevented from doing so by DRMs. As a result consumers are burdened by a double restriction: a PC levy and DRM. With a bit of "luck" consumers can truly make this "double charged" (levy + DRM restricition) argument in the future, when the computer is degraded to a DRMed platform. For now Germany has the questionable scoop of being the first and only country in Europe where PCs will be taxed in an era that DRM is gaining ground.

BTW, in the meantime a Canadian court has ruled that the application of a levy on digital audio recorders, such as Apple's iPod, is improper [Decision, PDF].

EU Committee on Human Rights & Internet

European Digital Rights (EDRI) European Digital Rights (EDRI) found something interesting in the nearly impenetrable forest of EU sites, which has been floating around for a while: the Council of Europe has formed a committee that is working on a draft political statement on human rights and the internet. "Human rights and the internet" is as euphemistic the committee's scope can be described, because it plans to illuminate us on a pile of issues that makes you hold your breath:

the right to freedom of expression and information;

the right to respect for private life and correspondence, for example with regard to the protection of 'traffic data' and to the problem of 'spamming';

the prohibition of racist and xenophobic speech, including on the Internet;

the right to education, for example e-learning;

the prohibition of slavery and forced labour;

the prohibition of trafficking in human beings;

the right to a fair trial, for example with respect to reporting on criminal proceedings by electronic media;

the principle of no punishment without law, for example with regard to new forms of cybercrime and the question of jurisdiction;

the importance of encouraging access to and the use by all of new information technologies without discrimination;

the protection of property, for example intellectual property in cyberspace;

the right to free elections, for example with regard to "e-voting";

the freedom of assembly and association as developing in cyberspace

The scope is amazing, and I would be amazed to get a clear recommendations from such a broad and general outstart. But who will provide us with insights in these burning issues in the first place? EDRI makes it look as if the committee is made up anonymous IP spin doctors that can vote us into an dystopian internet policy. I cannot find the people directly involved in the committee, but the related website reveals more information on the papers/ideas accompanying this "Internet & Human Rights" committee. I'll try to come back on them later, but guess I should have been informed much earlier. Two picks for now from several draft theses that "can be considered to initiate a debate about draft provisions for a document to be presented to the Committee of Ministers":

III. The advent of digital technology has a far-reaching impact on the protection of original works by copyright or neighbouring rights. These technologies not only allow works to be copied, with quality equal to that of the digital original, but also allow the large-scale dissemination of such copies. The fact that they can be accessed by the general public and used to exchange counterfeit photographic, musical or cinematographic works, is often presented as a major threat to authors, artists and the cultural industry.[italics added - RL]

Well, let's just say there is another side to the copyright medal, which has been defended and explained over and over and over again: the lock-down-of-culture-through-excessive-copyright-mantra. And what's up with the access of the general public to original works is a threat? Isn't that where the business model is?

IV. Protecting minors on the Internet is an issue to which the Council of Europe, the European Union and many states have devoted considerable attention. The aim is to prevent minors being exposed to harmful content; in other words content that is not unlawful in itself, but is considered to be harmful to minors. In order to regulate this content it has to be stimulated that control software will be developed that enables to filter and classify such content, whereas systems for identifying minors on-line should be improved.

Harmful content, the ghost that keeps haunting us. This number IV thesis does one thing right: reflecting the European search for filtering solutions, which has been a policy for years. If this search is right in itself is a whole different and far more complex question than the mere recommendation that "it has to be stimulated that control software is developed" to filter and classify content. Sponsoring technology that is effectively a censorship tool on a European level? Classify? PICS all over? The nineties calling?The premise of the committee & papers/ideas seems to be a good one: protection of human rights on the internet. However, I doubt the massive scope of the project that should form the basis for some serious policy guidelines. From first glance I doubt some of the provided theses. Europe seems in need for some policy changes, but if it is set in the right direction is questionable, as always.

Thursday, December 30, 2004

King Monkey Needs No ID

King Monkey Ian Brown put out a new album a few months ago: Solarized. Not the exhilarating ecstasy of the first Stone Roses, or even the cocaine-driven Mancunian Led Zeppelin guitar riffs cocktail that was their Second Coming. Still a sweet ride through the (exotic) spheres with a swinging bitter song on Britain's proposal for a national ID card: Kiss Ya Lips (No I.D.)Dance to the number:audio stream & lyrics:

I aint no number
I don't need no ID round my neck
So Mr Politician
I got born and named like blood runs red
Cause I I aint no number
Don't require no ID round my neck
So Mr number maker
ID cards won't stop no hijack jet

Think think of a number
Think of a number one to ten
If five five is your number
Times that five by two to make a ten
Cause I I aint no number
I don't need no ID round my neck
So Mr number maker
ID cards won't stop no hijack jet

Saturday, December 25, 2004

Chinese Cage Rabbit

Peter Rabbit, the tasty rodent created by Beatrix Potter over a century ago, is back in his cage. Attempts by a Chinese publisher to set him free from copyright restrictions have resulted in an affirmation of the rights of the English publisher Warne & Company by a Chinese court. The court has ruled that, although Chinese copyright ends 50 years after the death of the author, the Chinese publisher violated copyright by putting tens of thousands Peter Rabbit books on the market without authorization. Potter died in 1943, but apparently Warne & Company registered 11 of her characters between 1994 and 1997, two of which are related to Peter Rabbit.

The news reports are pretty shady about this case. No explanation is given for the discrepancy between the ending of the 50 year copyright term and the trademark rights of the English publisher. And is China getting more serious on copyright enforcement? If Peter wants to hold true to his story I can only say: run rabbit, run!

- - -

Xinhuanet report
Later: Furdlog points to other "evidence" that China is taking copyright enforcement more seriously: Honda brand motorbikes to be taken from the market.

The ongoing debate over the applicability of the First Amendment to software focuses primarily on whether software is speech, a device, or a combination of both. According to the terms of this debate, if software is speech then the First Amendment fully protects it; however, if software is a device, it deserves no First Amendment protection. I argue that this debate is misplaced because the mere classification of software as "speech" or as a "device" does not end the First Amendment inquiry. I propose an alternative framework in which well-accepted principles of tort law, criminal law, and First Amendment jurisprudence are combined to provide maximum protection for "software speech," while also promoting the public interest in regulating harm. Shaping the precise contours of such a framework, however, will require the resolution of difficult public policy questions raised by the unique nature of software and the Internet.

Except from jubilating his musical career Sir Cliff speaks out for an extention of European copyright protection, because

[C]ertainly all of my biggest 'hits' will, under current legislation, fall into the public domain during the next 10 years. As, arguably, the first British 'pop' artist of the modern era to achieve significant international success I am likely to be the first major British artist of that era to be significantly affected by the copyright in my recordings expiring.

While Sir Cliff is on a crusade for his pension, and possibly of some other artists, the Motion Picture Association (MPA) has a broader scheme in mind: criminalization of copyright infringement and data retention for (copyright) law enforcement purposes (read: suing the living dolls out of file-sharers). Here are the related extracts from the MPA's contribution to the consultation:

Criminalization:

The EU should redouble its efforts to ensure effective enforcement of copyright. The "Enforcement" Directive was adopted in April 2004 and offers a threshold level of enforcement possibilities for civil cases. MPA strongly supports the efforts of the Commission to introduce, criminal remedies and believes the EU must strengthen the penal framework for combating piracy. The adoption of a coherent crime policy by the Union will ensure adequate and consistent sentencing of offenders by the courts.

Data retention:

It is also essential that the adoption of new data retention rules does not undermine the rights of access to data provided in the Enforcement Directive.

Saturday, December 18, 2004

INDICARE Article Flow

INDICARE Monitor 6/7 has been published! A stream of interesting articles on Digital Rights Management and various related issues. Check it out!

- DRM strategies debate in the US – A report from a JupiterMedia ConferenceAbstract: JupiterMedia’s Digital Rights Management Strategies Conference was announced as “the most comprehensive event on DRM business and technology issues ever held”. This statement weighs even more as the US DRM market is more mature than the European market. Although the two day conference explicitly targeted consumer issues, it is safe to say that consumer-friendly DRMs are not the most important thing for American players in the DRM and content industry.

- Turning infringing users into paying customers - A new trend in anti-piracyAbstract: Copy protection of digital content is moving from a concept of inhibiting consumers from making copies (or at least trying to do so) by technological protection measures (TPM) towards a concept of detecting illegal use. In case illegal use is detected, a type of "punishment" may follow: the content may suffer quality degradation, or – in the case of software – it may behave in a strange, annoying manner. In the best of cases the infringing user facing this kind of punishment is at the same time encouraged to obtain a legal copy. The article reviews the present state of this new concept in the area of game software.

- If you can't beat them, join them - DRM as the future for collecting societiesAbstract: INDICARE-Interview by Natali Helberger, IViR, Amsterdam, The Netherlands with André Beemsterboer, CEDAR (Centruum voor Dienstverlening Auteurs- en anverwante Rechten). Some say that DRM is the last nail in the coffin of collecting societies. Not so André Beemsterboer, director of CEDAR, one of the major Dutch collecting societies. In this interview, Mr. Beemsterboer explains his vision of the future of collecting societies – collecting societies as users of DRM.

- Learning from P2P: Evolution of business models for online contentAbstract: Online content services using DRM have been seen as antithetical to file-sharing services based on the peer-to-peer (P2P) model. But over the past year or so, more and more copyright-respecting services have appeared with features appropriated from P2P networks, while at the same time, P2P networks with some copyright-respecting features have also been introduced. The truth emerging is that DRM and P2P are orthogonal sets of capabilities, which can be complementary as well as antithetical (Einhorn and Rosenblatt 2005). From consumers’ perspective, the differences between “P2P” and “DRM” based services are gradually shrinking.

- Mobile music in Japan - Japan's reality is our futureAbstract: This article takes a close look at the world-leading Japanese mobile data market which is all about migrating users to 3G (third generation of mobile communication technology) and offering new cutting-edge services driven by more powerful 3G networks and devices. Its special focus is on the mobile music market which generates 50 % of mobile content premium revenues. Learning from Japan makes sense as there are basically no differences between end user cultures in Japan and other countries, but there still are many differences between management cultures.

- Chiariglione's vision: An interoperable DRM platform to the benefit of allAbstract: INDICARE-Interview by Knud Böhle, ITAS, Karlsruhe, Germany with Leonardo Chiariglione, Digital Media Project. The purpose of the interview is to get a better understanding of the project's work, and to find out how consumer concerns are addressed within the project.

- Content protection comes first: A report about the Fourth ACM Workshop on Digital Rights ManagementAbstract: This year's ACM Workshop on Digital Rights Management, which took place in Washington, DC, was an opportunity to find out what is going on in the technical field and what the research priorities of DRM specialists are. The following report points out the issues I found most interesting for INDICARE. It is telling that neither privacy enhancing technologies nor end user centred design of acceptable DRM systems were among the issues dealt with. The primary and enduring concern was still, and for obvious reasons, content protection technologies.

Wednesday, December 15, 2004

Copyright, Slavery

The Plan, pioneers from the German neue welle, have a new album out with a fantastic song: Copyright Slavery. There's a great video, which can be viewed here. The lyrics, sung by a children's choir, go like this, in German with English translation:

"In the future people have no choice but pay up to get their music together with videos from the Internet. The files will destroy themselves automatically after they've been played three times, after which you have to buy them again. Mobile playing devices will disappear, instead Polish wage slaves will sing the songs quiet in the ear."

On the choice to use a children's choir:

"In this case it completely particularly fits, because it are the children, whose future is robbed by copyright. You should imagine: one grows into a world, in which innumerable things are not permitted, only because some dead ancestor has claimed his "rights". Surely, the question is much more complicated than such a simple song can express, butsociety must really consider whether the patent law does not do us more harm than good."

INDICARE Report Announcement

Earlier this week I already mentioned the release of the INDICARE Report, which I co-authored (Legal Chapter): Digital Rights Management and Consumer Acceptability. Here's the official announcement, another chance for a shameless plug:

The new INDICARE report demonstrates that interests and concerns of consumers are insufficiently considered in the context of DRM-protected digital content. The present publication is the first State-of-the-Art Report by the INDICARE project. You are kindly invited to download the report from the INDICARE website:http://www.indicare.org/soareport (PDF, 1011 KB)

Although consumer acceptability of DRM has started to draw wider attention, the report shows that there is still little knowledge and empirical evidence with respect to consumer concerns and expectations regarding DRM. The low level of active involvement of consumer advocates can explain to a certain extent the unsatisfactory degree of responsiveness of existing business models, technical systems, legal instruments and political initiatives.

The authors point out: “DRM is a topic that goes far beyond piracy prevention and has to be seen in a broader social, economic, legal and technical context. From the legal point of view, many of the identified issues go beyond the scope of copyright.” The report highlights the increased importance of consumer protection and contract law. Furthermore: “The technical solutions that could respond to some of the consumer concerns have not been fully exploited yet. In the report we show already existing technical possibilities to resolve these issues.” Major concerns are fair conditions of use and access to digital content, privacy, interoperability, transparency, as well as various aspects of consumer friendliness. The authors are convinced that the consumer acceptability of DRM is crucial for the economic success of different business models based on DRM: “Fair and responsive DRM design is the key to a profitable strategy.”

Tuesday, December 14, 2004

Rise of the Machines

Machines may be cool when they walk through walls and eat bullets for breakfast. It's something else if machines prevent you from watching this machinal coolness on your own machine. This consumer rose to the machines, but is still ready to terminate the purchase of his DVD, if he can. Can he? Yes he can, probably:

A consumer who bought a DVD of Terminator 2, and thoroughly checked for hardware requirements and region coding on its cover, got a nasty surprise when he tried to play the movie on his computer. He had to download and install a third party application, and obtain a license via an online server. The server determined that he wasn't located in the US or Canada, the countries to which play back of the movie was apparently restricted, although the DVD cover didn't disclosed this information.

By running his IP address through an anonymous proxy server located in the US he was able to get a license that only allowed him to view the movie for five days, after which a new license had to be acquired. The buyer was not amused, to put it mildly:

"To be honest that really pissed me off, I spent about an hour trying to play back a disc I legitimately bought and went as far as installing and updating a 3rd party application to my system that would allow me to do so, and now I'm only being given a temporary license, where's my rights as a consumer? If this is how future DRM protected content will be distributed I have strong objections to the use of DRM, as this is a prime example of how to quickly alienate any prospective consumers.

(...)

Obviously (the producer) has other ideas about that, ideas they should clearly communicate on the dvd cover, instead of simply omitting them to prevent people not buying this two-disk dvd set."

The question is if the producer should have clearly communicated his ideas on the DVD cover? The answer is yes, probably. As lined out in INDICARE's State of the Art Report (PDF), the issue of transparency of product information, and specifically on the use of DRMs, is of importance to consumers to make a well informed (purchasing) decision. In a recent French court case on the labeling of CDs, the court considered that by insufficiently informing a consumer about the scope of the playability of the CD the producer had been guilty of a misleading practice (compare p. 55-56 of the INDICARE Report. Also Helberger 2004). This case shows that consumers may have some legal standing when it comes to the information provision on DRMs.

Article 95(d) of the German copyright law expressively deals with this information provision. To quote from the INDICARE Report: "It states that content protected by technological measures should be clearly marked and indicate the properties of these measures." Likewise, a US proposal for law, the Digital Media Consumers' Rights Act, seeks to enhance the transparency for consumers by requiring manufacturers to put informative labels on copy-protected content.

The court case and (proposed) legal provisions aside, consumers are also confronted with restrictive license agreements. If they even come that far, because how many consumers will reroute through a proxy server to play a legimately purchased movie? Only Terminator fans, the sci-fi techno lovers that know how to fight back at the machines?

- - -

This is cross-posting with the INDICARE blog. Check it out for DRM specific content!

Apple Fixes RealNetworks' Hack

When RealNetworks used a hack to make their songs compatible with Apple's iPod, the company claimed it was doing this to provide consumer freedom of choice. RealNetworks launched a website Freedom of Music Choice with smooth content and a popular message:

"Choice Rocks! Consumers are getting a raw deal with the status quo in digital music, which limits healthy, open competition that drives down prices and encourages innovation. Stand up for your right to Freedom of Music Choice."

Yeah, Rock on! But no longer to RealNetworks' songs playing on your iPod. CNet reports that Apple has updated its firmware, so that the hack that outraged Apple, has become useless. RealNetworks' songs, and those of other providers using the same music format, will be unplayable on the (updated) iPods, yet again. What was clear from the start, has crystallized now: this is a competitive war fought over the back of consumers.

BitTorrent Paper

In light of the coming legal actions of the MPAA against P2P networks, amongst which BitTorrent, a short paper on BitTorrent by Johan Pouwelse, speaker at the upcoming US Federal Trade Commission's P2P workshop. Here is the abstract:

Of the many P2P file-sharing prototypes in existence, BitTorrent is one of the few that has managed to attract millions of users. BitTorrent relies on other (global) components for file search, employs a moderator system to ensure the integrity of file data, and uses a bartering technique for downloading in order to prevent users from freeriding. In this paper we present a measurement study of BitTorrent in which we focus on four issues, viz. availability, integrity, flashcrowd handling, and download performance. The purpose of this paper is to aid in the understanding of a real P2P system that apparently has the right mechanisms to attract a large user community, to provide measurement data that may be useful in modeling P2P systems, and to identify design issues in such systems.

WiFi: Free Ride No More

Are the days of free riding open WiFi networks numbered? The Register reports on tunable surfaces, which can selectively block WiFi signals from getting out into the open:

Dr Christos Mias, in the University of Warwick's School of Engineering, has developed a "dipole grid-based frequency selective surface" to perform this task. This grid of circuitry has the potential to be embedded in any glass window and then tuned to block the selected frequency. The circuit can easily be tuned to block a different frequency if circumstances in the office change without having to remove the window or the circuits.

I guess the tuner to tune these windows has some encryption running. And I pithy the future office workers on a steaming hot summer day in 2025 that are caged behind WiFi windows when the airco breaks down. They'll probably cool down from the coolness of this device.

Thursday, December 09, 2004

INDICARE Report: DRM & Consumer Acceptability

INDICARE has released its State of the Art report today: Digital Rights Management and Consumer Acceptability (PDF, 147 pages). As the subtitle states, it is a multi-disciplinary discussion of consumer concerns and expectations. I took part in that discussion and wrote the legal chapter of the report. There's also a social, technical and business chapter. A press release will follow next week.

What makes this report interesting is that it deals with consumer concerns, and not so much the concerns of the industry, the users of DRM. The position of the consumer, the end-user, has for long been neglected in official reporting at the European level. For example, it is fair to say that the current High Level Group on DRM is industry driven and not very much concerned with the concerns of consumers. Unless profitable, one might add.

This report looks at DRMs from a different angle, the consumer's, though it tries to be neutral in its reporting. It lines out the restrictions with which consumers may be confronted, and to what extent DRMs might have the potential to become acceptable them. The legal chapter I wrote notes, amongst others, that the European Copyright Directive is a rightsholders centered legislation and the anti-circumvention provision overshadows the copyright exemption provision (e.g. private use, quotation, scholary use). Consequently consumers may have to fall back on consumer protection law to secure their interests in expected private uses, privacy, compatibility, transparency, fair contracts a.o.. European Consumer Protection law, however, proves to be a fragmented field and it is often unclear to what extent certain provisions may apply to the use of DRMs. "Clarity towards the applicability of provisions is important for the consumer to determine his legal standing and secure his interests. The future discussion around DRM should therefore pay greater attention to consumer protection law."

This is put a bit bluntly, and some may ask more blunt questions in return: "Will DRMs work in the first place?" And "Aren't DRMs evil?" I can't give any answers, at least we didn't research it in the report. And the report is no 147 page roller coaster ride, but it does give a look through the eyes of the (European) consumer at Digital Rights Management, finally.

Wednesday, December 08, 2004

IBM Sale Raises Hardware Control Questions

An interesting question at Furdlog on the news that IBM has sold its PC business to the Chinese computer maker Lenovo:

Exactly how interested will a Chinese manufacturer (3rd largest in the world) be in incorporating hardware controls that comply with US copy protection policies, but also cripple the product?

This question has already been raised by the (future) introduction of the U.S. broadcast flag scheme, one of the copy protection policies the question refers to. The broadcast flag is a technological measure to control the distribution of digital over-the-air television content via p2p-systems, and blurs the regulation of broadcasting and the internet. The broadcast flag consists of metadata and is transmitted with the digital television signal to "tell" a receiver of these signals whether it may redistribute the content or not. The Federal Communications Commission has made clear that the broadcast flag will have to be incorporated in PCs:

"We further note that we intend our redistribution control regulations to apply to any device or piece of equipment whether it be consumer electronics, PC or IT device that contains a tuner capable of receiving over-the-air television broadcast signals." (PDF of FCC Proposal)

This means that any PC sold in the United States will have to adhere to the broadcast flag scheme, which, as noted on Furdlog, cripples the product. The "freedom to tinker" with the PC is restricted. The open platform of the PC is partly closed.

This relates to the answer to the question in that any foreign manufacturer, for example Lenovo, has to comply with the broadcast flag scheme if it wants to sell PCs in the United States. If foreign manufacturers don't want to be excluded from the U.S. market they better incorporate U.S. copy protection policies. Actually, while non-U.S. manufacturers may not import them, U.S. companies may keep on manufacturing non-compliant PCs for export purposes:

"The requirements of this subpart do not apply to demodulators, covered demodulator products or peripheral TSP products manufactured in the United States solely for export." (compare C.F.R. § 73.9009)

This raises a fair trade issue, but more importantly foreign manufacturers may produce (U.S.) copyright protection de facto in PCs. Two production lines -U.S. compliant DRMed and non-DRMed PCs- may prove too costly to keep up. This would bring the implementation of U.S. policies on a global level.

Depending on the market share of IBM's PC business in the U.S. Lenovo's incentive to "incorporate hardware controls that comply with US copy protection policies, but also cripple the product" may be rather high. Another question is what happens when the Chinese government mandates the incorporation of filtering controls in Lenovo's products. But that's just a wild thought, as the broadcast flag once was.

Link to BBC Online story on IBM-Lenovo deal
Link to Slashdot discussion on the sale

Tuesday, December 07, 2004

French Law Mandates Message D'Erreur

French chauvinism comes to the web, again. In the (in)famous Yahoo! case France sought the enforcement of French (anti-hate speech) law on U.S. soil through the use of geolocation techniques. Now a proposal for law mandates that error messages emitted by internet sites that are not exclusively targeted on a foreign (non-French) audience are written in French: Error becomes Erreur.

The proposal, to be voted on in 2005, is based on a ten year old law, the Toubon law, that sees on the use of French and gives expression to Article 2 of the French Constitution, which determines that French is the language of the Republic. The Toubon law demands that all advertising of goods and services in France is in French or include a French translation. Since its enactment the Toubon law has been used to target internet sites, specifically of (commercial) institutions operating in France that have an all-English website. That the French mean business with preserving their language, becomes clear from this article on the first Toubon lawsuit, seven years ago.

The current proposal wants websites that are targeted at French citizen-consumers to be in French, or have a sufficient translation. How to enforce this? The proposal doesn't mention it, but it is likely that (international) commercial institutions that reside within France will be fined when they do not comply. Geolocation - tailoring of website content on the basis of geographic (IP address) information - may probably be one of the options to technically enforce the law. Another would be that we all start to write with outrageous French accents. Reterritorialisation of the internet, drawing the national boundaries in digital lines, France is at it again.

Belgian ISP Forced to Disconnect P2P-Users

EDRI reports that a Brussels court has ruled that a Belgian internet provider has to disconnect customers if they violate copyrights and block the access of all customers to sites that offer file-sharing programs. The Belgian Society of Authors, Composers and Publishers (SABAM) had appealed to consideration 59 of the European Copyright Directive (EUCD), and was heard. No court opinion has been published yet.

Consideration 59 states: "In the digital environment, in particular, the services of intermediaries may increasingly be used by third parties for infringing activities. In many cases such intermediaries are best placed to bring such infringing activities to an end. Therefore, without prejudice to any other sanctions and remedies available, right-holders should have the possibility of applying for an injunction against an intermediary who carries a third party's infringement of a protected work or other subject-matter in a network."

Consideration 59 EUCD is a fine example of how enforcement of (copyright) law through technical code is placed at a node of control within the network (ISPs). It also reflects how private parties (ISPs) could be used to enforce both public policing functions and represent private interests. It will be interesting to see how the Court has come to its far-reaching conclusion. The disconnection of users to websites offering P2P programs raises some serious freedom of expression issues. Preventive exclusion to programs that have legal uses touches on (privatized) censorship.

It is also questionable how ISPs can be forced to disconnect. Under the regime of the Electronic Commerce Directive ISPs are not liable when they function as mere conduits. If ISPs host infringing content they may fall within the Notice and Take Down (NTD) regime of article 14 of the Directive. This article does not provide a formal NTD procedure, like in the U.S. DMCA. Consequently, SABAM might come with a NTD, and not bound by formal restrictions an ISP may choose the path of the least cost: the potential costs of litigation outweigh the cost of losing a subscriber.
There are many more issues to this subject, but I'll wait for the opinion to surface.

Update: The opinion can be downloaded here (Doc file, Dutch only). The opinion does state that copyright infringement is taking place through p2p software by using the service of the ISP. The legal ground for the ISP to take appropriate measures against the infringments is not clear. However, the opinion also asks for further research to be conducted on the technical possibility and effectiveness of filtering software. This research has to be paid by SABAM, and is expected to be concluded somewhere in 2005.

I've been working on the INDICARE project for the last few months, writing the legal chapter of a State of the Art report, which has yet to be published. (Update The INDICARE report has been published [PDF].) It deals with the legal questions DRMs pose for consumers, or better, users. The European Copyright Directive (EUCD) plays a major role in it, specifically the tension between article 6 EUCD (protection of technological measures) and article 5 EUCD (copyright exemptions). It's legal framework is European community law. The Berkman paper takes a different angle, that deserved a thorough research. The Berkman papers have been excellent in the past, and on first glance, this one is too. (And it's nice to see that the INDICARE website has "proved to be useful in the context of the present research project".

Here is the abstract:

"In this paper, the Berkman Center's Digital Media Project team provides an overview of the current state of implementation of the European Union's Directive 2001/29/EC, better known as the EU Copyright Directive (EUCD), which seeks to harmonize the divergent European copyright regimes and to transpose the WIPO-treaties (see chart). The paper analyzes the ways in which EU member states have transposed the EUCD's provisions on the protection of technological measures (such as encryption, digital watermarking, copy-control technologies, etc.) into national law, and takes a closer look at the relevant definitions, exemptions, sanctions and remedies.

In essence, the paper demonstrates that EU member states continue to struggle with some of the thorniest problems already identified at the level of the EUCD, and leave it to the national courts and, ultimately, to the European Court of Justice not only to fine-tune the new legislation, but also to address and resolve rather fundamental issues related to the legal protection of technological measures. The paper suggests that the EUCD, in fact, has led to a certain level of harmonization of member states' laws, but also identifies and maps significant differences among member states in the field of anti-circumvention laws.

A linklist to international and national legislation on technological protection measures with focus on the relevant laws of EU member states has also been made available here by the Digital Media Project team. Links to other useful materials and sources are posted here. "